United States, owes also a paramount allegiance to the United States in all that is made by the Constitution of federal obligation. In view of this dual, and yet undivided, allegiance due by those who are citizens of the United States and also citizens of a state, it was, in the hour of its formation, and it has ever since been, essential to the right administration of the government of the United States under the Constitution that there should be a clear appreciation of the complex character of that government, and a careful maintenance of the balance of power as between the government of the United States and the governments of the several states.

CHAPTER II.

THE IMPLIED POWERS.

8. The necessity of their existence.

9. Their constitutional recognition.

10. The test of the relation of the means to the ends.

11. Illustrations of the exercise of the implied powers.

12. The legal tender question.

13. The possible scope of the legal tender cases as authorities.

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8. The Constitution was not framed to meet only the exigencies of the period of its formation, nor does it purport to be a code, which with minute detail prescribes all that may be done and all that may not be done by Congress in the execution of the powers specifically granted.1 As Mr. Webster said in his argument in Gibbons v. Ogden,2 and as Marshall, C. J., repeated in his judgment in that cause, the Constitution enumerates, but does not define, the powers which it grants, nor does it prescribe the means which may rightfully be used in executing those powers, and without whose use, the grant of the powers would be nugatory. Therefore, if the Constitution contained no clause recognizing the existence of powers which are subsidiary or incidental to the powers expressly granted, it would be impossible to avoid the conclusion that there is an implied grant of such incidental powers, for otherwise the powers expressly granted would be practically inoperative. Nor

1 McCulloch v. Maryland, 4 Wheat. 406; Martin v. Hunter's Lessee, 1 id. 326.

26 Webster's Works 9.

39 Wheat. 189.

McCulloch v. Maryland, 4 Wheat. 407.

is the force of this conclusion at all affected by the X Amendment, for while that amendment in terms forbids the exercise by Congress of any undelegated power, it does not forbid the exercise of powers which are delegated by implication.1

9. Section 8 of article I of the Constitution declares

that "the Congress shall have power . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof." But it may be said, who is to conclusively determine whether or not any statute is, within the terms of the Constitution, "necessary and proper for carrying into execution" a power granted by the Constitution to Congress? If Congress can so determine, obviously any and every act of Congress must be regarded as constitutional. If in the exercise of judicial jurisdiction the final determination of that question is to be made by the court, what principles are to guide the judges in coming to a conclusion, and by what test are they to determine the relation between the means and the end, and the degree of the necessity and the propriety of the use of the particular means?

10. The result of the authorities, so far as they afford an answer to this question, can be best stated by the quotation of a famous dictum originated by Mr. Hamilton 2 and paraphrased by Chief Justice Marshall in the judgment in McCulloch v. Maryland, and which, in its final perfected form, is as follows: "let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly

1 Mr. Hamilton's argument as to a national bank. 3 Lodge's Hamilton's Works 183; McCulloch v. Maryland, 4 Wheat. 406.

2 Argument as to a national bank. 3 Lodge's Hamilton's Works 190. 4 Wheat. 421.

1

adapted to the end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." This dictum means that Congress may, in the execution of a power expressly granted, adopt: any means which (1) are not expressly prohibited by the Constitution, nor (2) inconsistent with the letter and spirit of the Constitution, and which are (3) not the only possible means, nor an absolutely or indispensably necessary means, but an appropriate and plainly adapted means, to the attainment of an end authorized by the Constitution. From this it follows, that if the relation of the means to the end be shown to exist, and if the use of the particular means be not expressly or impliedly forbidden by the Constitution, the question of the degree of its appropriateness, of its greater or less adaptation, and of its relative or absolute necessity is purely political, and the determination of Congress with regard thereto is binding upon the courts.

11. Under the doctrine of the implied powers, it has been held that Congress may enact statutes creating banking corporations as fiscal aids to the government;2 imposing upon national and state banks a tax upon the amount of the notes of state banks paid out by them ;3 giving priority to the United States as a creditor in the distribution of the assets of a bankrupt; declaring that the embezzlement by a guardian of his ward's pension granted by the United States is a crime against the United States; taxing lands in the District of Colum

1 The opposing view, sustaining the strict construction of the Constitution, is, perhaps, most strongly put by Mr. Jefferson. Memoirs, vol. IV, pp. 197, 207, 526; 4 Elliot's Debates 609.

2 McCulloch v. Maryland, 4 Wheat. 316; Osborn v. The Bank of the United States, 9 id. 738.

3 Veazie Bank v. Fenno, 8 Wall. 533.

4 U. S. v. Fisher, 2 Cr. 358.

U. S. v. Hall, 98 U. S. 343.

bia;1 declaring it to be a crime to bring into the United States from a foreign place, counterfeit coins forged in the similtude of coins of the United State; constituting a judicial system to carry into execution the judicial powers vested by the Constitution in the United States; regulating the carriage of the mails and determining what may be transported and what must be excluded from the mails; punishing for contempt others than members of Congress; protecting citizens of the United States in the exercise of the rights of suffrage at elections for members of Congress; authorizing a limited intercourse on prescribed conditions with the enemy in time of war; prescribing the effect to be given in state courts to judgments and decrees rendered in courts of the United States; authorizing the issue by courts of the United States of writs of habeas corpus ad subjiciendum in cases of restraint of personal liberty under the process of state courts issued in violation of rights. claimed under the Constitution or laws of the United States; authorizing the removal to the courts of the United States of causes depending in state courts and involving questions of Federal cognizance ;10 exercising the right of eminent domain with regard to land within the bounds of a state and held in private ownership;" in order to protect purchasers under the homestead laws

1 Loughborough v. Blake, 5 Wheat. 317.

2 The United States v. Marigold, 9 How. 560.

3 Ableman v. Booth, 21 How. 506, 521.

Ex parte Jackson, 96 U. S. 727.

5 Anderson v. Dunn, 6 Wheat. 204; sed. cf. Kilbourn v. Thompson, 103 U.. S. 168.

• Ex parte Yarbrough, 110 U. S. 651.

Hamilton v. Dillin, 21 Wall. 73.

8 Embry v. Palmer, 107 U. S. 3.

• Ex parte Royall, 117 U. S. 241; Ex parte Fonda, ibid. 516.

10 Martin v. Hunter's Lessee, 1 Wheat. 304, 349.

" Kohl v. The United States, 91 U. S. 367.